IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION ONE ANDREAS KISCHEL, individually, 

### ) No. 77975-3-I

Appellant, 

### )
v. 

### ) UNPUBLISHED OPINION PUBLIC STORAGE, 

### ) ) Respondent. 

### ) FILED: June 3, 2019 ScHINDLER, J.

—Andreas Kischel filed a Complaint against Public Storage for declaratoryjudgment and violation ofthe Consumer Protection Act (CPA), chapter 19.86 RCW. Kischel appeals summaryjudgment dismissal ofthe lawsuit. Kischel contends the court erred in ruling the Public Storage advertisements were not an unfair
ordeceptive act or practice underthe CPA and denying his requestfor a declaratory judgment. We affirm. FACTS On November2, 2014, Andreas Kischel executed a “Lease/Rental Agreement” with Public Storage to rent storage space atthe Bellevue facility located at 131 05 SE 30th Street. The term ofthe Lease/Rental Agreement was month-to-month ‘until terminated.” Kischel initialed and acknowledged he “has read” and “understands andNo. 77975-3-1/2

agrees to” a numberof provisions in the Lease/Rental Agreement, including limitation of “Owner’s’ liability: LIMITATION OF OWNER’S LIABILITY: INDEMNITY. Owner and Owner’s Agents will have no responsibility to Occupant orto any other person for any loss, liability, claim, expense, damage to property or injury to persons (“Loss”) from any cause, including without limitation, Owner’s and Owner’s Agents[’j active or passive acts, omissions, negligence or conversion, unless the Loss is directly caused by Owner’s fraud, willful injury orwillful violation of law. Occupantshall indemnify and hold Ownerand Owner’s Agents harmless from any loss incurred by Ownerand Owner’s Agents in anyway arising out ofOccupant’s use ofthe Premises orthe Property including, but not limited to, claims of injury or loss by Occupant’s visitors or invitees. Occupant agrees that Owner’s and Owner’s Agents’ total responsibilityfor any Loss from any cause whatsoeverwill not exceed a total of

### $5,000.[hl The Lease/Rental Agreement expressly states Public Storage ‘disclaims any implied orexpress warranties, guarantees or representations ofthe

. . . safety or security ofthe Premises and the Property.”2 NO WARRANTIES: ENTIRE AGREEMENT. Owner hereby disclaims any implied or express warranties, guarantees, or representations of the nature, condition, safety orsecurity ofthe Premises and the Propertyand Occupant hereby acknowledges that Occupant has inspected the Premises and the Property and hereby acknowledges and agrees that Ownerdoes not represent or guarantee the safety or security ofthe Premises orthe Property or ofany personal property stored therein, and this LeaselRental Agreementdoes not create any contractual obligation for Ownerto increase or maintain such safety orsecurity.[31 Aftersigning the lease on November2, 2014, Kischel moved personal articles into the storage unitwith the help of his friend Valeriy Sakk. Kischel used a combination lockto secure entryto the storage unit.

1 Boldface in original. 2 Boldface omitted.

~ Boldface in original.
2No. 77975-3-113

Almost a year later on October 5, 2015, Kischel and Sakk returned to the Public Storage facilityto retrieve the items from the storage unit. The lock on the storage unit had been replaced with a “Public Storage’ lock. The Lease/Rental Agreement states that “in the event ofsuspected criminal activity” or“an emergency,” the Owner’sAgent has “the right, but not the obligation, to remove Occupant’s locks and enterthe Premises” for purposes oftaking such “action as may be necessary and appropriate to preserve the Premises.” The Public Storage employee told Kischel he could waitforthe district manager to open the lockto the storage unit or remove the lock in the presence ofa Public Storage employee. Kischel called afriend to removethe lock in the presence ofa Public Storage employee. When Kischel went into the storage unit, he “noticed that
some of my articles had been ransacked and items were missing.” Kischel estimated the “approximate market value of my stolen articles” was “about $1 500.” On October 11, 2015, Kischel terminated the Lease/Rental Agreement. On May 15, 2017, Kischel filed a “Complaintfor DeclaratoryJudgment.” Kischel sought a declaratoryjudgment on the obligation of Public Storage, his rights as a user ofa Public Storage facility, and validity ofthe terms ofthe Lease/Rental Agreement that limited the liability of Public Storage. Kischel alleged Public Storage had an obligation to refund rental fees and should pay “the estimated amount of$1 800” forthe stolen items. On June 14, Public Storage filed an answerto the complaint. Public Storage denied the allegations. Public Storage asserted a number ofaffirmative defenses,

3No. 77975-3-1/4

including the lawsuit did not state a claim upon which relief may be granted and the express terms ofthe Lease/Rental Agreement barred the claims. On November6, the court granted Kischel’s motion to amend the complaintto add a cause ofaction alleging Public Storage violated the Consumer Protection Act (CPA), chapter 19.86 RCW. Kischel filed the amended complainton November 15. The amended complaint alleged the Public Storage advertisements were unfair and deceptive. Kischel alleged he “reasonably assumed and relied on defendant’s representation that defendant’s storage facilitywas secured from theft and intruders.” Kischel cites Internet advertisements that state, “‘Public Storage is a respected and trusted operator ofselfstorage facilities,’

““ ‘Our Facilities are clean and well-lit,’

““ ‘[Y]ou’ll get a personalized entry code forthe electronic securitygate,’

“ and “‘You’ll find property managers at each location who are self-storage experts.’

“ Kischel alleged Public Storage had a duty to provide notice that “the storage facilitywas in fact not secure and open to theft.” The amended complaint attached as an exhibit records produced bythe Bellevue Police Department in response to a Public Records Act, chapter42.56 RCW, request. The records reflect 243 reports of“theft or loss of property” in the previous five years at the seven Public Storage locations in Bellevue, including 31 reports of “theft or loss of property” in the previous five years atthe Public Storage location in Bellevuewhere Kischel rented a storage unit. On November 17, two days after Kischel filed the amended complaint, Public Storage filed a motion for summaryjudgment dismissal ofthe lawsuit. Public Storage noted the hearing on the motion forsummaryjudgmentfor December 15.

4No. 77975-3-115

Public Storage argued as a matterof law Kischel was not entitled to a declaratory judgment and the advertisements did notviolate the CPA. In support ofthe motion, Public Storage submitted the declaration of regional managerJC Reed, the Lease/Rental Agreement Kischel signed, and the ledgerfor Kischel’s storage unit. Reed described the specific securityfeatures atthe Bellevue storage facility in 2014 and 2015, including a daily lock check, individual customergate codes forsecure access to the facility, a CCTV4 system to monitor access, and an onsite resident property manager. Reed states Public Storage “cannot and does not guarantee that a theft may never occur at a Public Storage facility.” On December4, Kischel filed a response to the summaryjudgment motion. Kischel argued he was entitled to a declaratoryjudgment and there were disputed material issues offact, including “Defendant’s deliberate non-disclosure to Plaintiffof
numerous documented instances of burglary and theft” and whether Public Storage denied Kischel access to his unit.5 Kischel asserted the Public Storage advertisements
were unfairand deceptive, affecting the public interest. Kischel cites the following Internet advertisements: WhyWe’re Number One
• Over 1 million people trusttheirthings to Public Storage
• Ourfacilities are clean and well-lit
• You keep the only keyto your unit
• We offer climate controlled units
• We give you 7 days aweek access • We offera wide variety ofsizes and features.~6~

~ Closed-circuittelevision.

~ Emphasis in original; boldface omitted. 6 Boldface omitted.
5No. 77975-3-1/6

Kischel alleged: [T]he website extolls the virtues of Defendant’s company over others in the market by claiming that: “Public Storage is the leading provider ofstorage units foryour personal, business and vehicle needs with thousands of locations nationwide.” “Once you move in, you keep the only keyto yourself-storage unit, which you can access on yourschedule.” “On yourfirst day, you’ll get a personalized entry code forthe electronic security gate. You’ll then be free to come and go anytime during Gate Hours.” “You’ll find property managers at each location who are self-storage experts.”~7~ Kischel and Valeriy Sakkfiled declarations in opposition to summaryjudgment. Sakk stated that on October 5, 2015, Kischel’s combination lock had been replaced with
a Public Storage lock and when Kischel opened the doorto the storage unit, “we both noticed that itwas not packed to the limits the waywe left it originally one year ago.” Kischel states he “fully relied on the defendant’s representation that defendant’s storage facilitywas secured from theft and intruders.” Based on advertisement, that people trust Defendant’s expertise, that Defendantwas best storage solution, that Defendantwas respected and had successful history ofstorage operations, Defendant’s storage facility had an on-site manager, I had formed an opinion that Defendant’s storage facilitywas safe for my storage needs and I fully relied on the defendant’s representation that defendant’s storage facilitywas secured from theft and intruders. Kischel cites the following representations: I looked up on [the] [l]nternet and found Public Storage units advertised in Bellevue, Washington. Public Storage advertised itselfas: “trusted, with expertise, providing best storage solution, largest self-storage company in the world, long and successful history, leadership position in the self-storage industry,

~ Emphasis in original; boldface omitted.
6No. 77975-3-1/7 respected and trusted, a member ofthe S&P~8~ 500 and FT[91 Global 500, Number One, clean and well-litfacilities, customer keeps the only keyto his or her unit, 7 days a week access to storage units, leading providerofstorage units, personalized entry code for electronic security gate, on-site property managers who are self-storage experts.” Kischel states, “I would not have entered into any contractwith Public Storage had it informed me that its storage facilitywas in fact not secure, readily open to theft and that it had history oftheft and burglary.” Kischel filed a ‘Notice” to takejudicial notice ofthe Bellevue Police Department records attached to the amended complaint. In response, Public Storage stipulated: [Florthe purposes ofsummary iudgment only, the court can takejudicial notice that: During a five year period, there were as many as 243 reported incidents of potential theft and/or burglary occurring at all of Public Storage’s facilities within Bellevue, WA.~101 However, Public Storage objected to “the courttaking notice that any alleged thefts or burglaries in fact occurred, orthe exactfacts or circumstances surrounding any alleged thefts or burglaries.” The court granted the motion to dismiss the lawsuit on summaryjudgment. The court entered an “Order Granting Defendant’s Motion for SummaryJudgment.” The orderstates that even assuming for purposes ofsummaryjudgment thatthe reported Public Storage thefts are true, Kischel could not prove a CPAviolation. The court concluded as a matterof lawthatthe Public Storage advertisements were not unfairordeceptive and did not have the capacityto deceive the public.

The Defendant’s advertising claims, as recounted in the Plaintiff’s declaration, cannot reasonably be interpreted as being false, or as

8 Standard and Poor’s.

~ Financial Times. 10 Emphasis in original; boldface omitted.
7No. 77975-3-1/8

justifying consumers in concluding thatthere have been no thefts atthe Defendant’s storage facility. The Plaintiff’s assertions do notjustify an inference thatthe Defendant has undertaken to guarantee the security of its storage facility. The court concluded Kischel was not entitled to a declaratoryjudgment because the Lease/Rental Agreement ‘is no longer in effect.”

The court agrees with the Defendantthat itwould be inappropriate forthe courtto make a declaratory ruling with respectto this claim. The parties’ Lease/Rental Agreement is no longer in effect, and so there is no reason to bring a claim with respectto that contract pursuantto the DeclaratoryJudgments Act, Chap[ter] 7.24 RCW. The court concluded that “to the extentthatthe Plaintiff believes thatthe Defendant has caused the Plaintiffto sustain monetary harm based on the chronology ofthe Lease/Rental Agreement, the Plaintiff’s proper remedy is to bring a claim fordamages.” ANALYSIS Consumer Protection Act Preliminarily, Kischel contends the court erred by denying his motion to deem the CPA allegations in the amended complaint admissions under CR 8(d). Forthe firsttime atthe summaryjudgment hearing on December 15, Kischel argued that because Public Storage did notfile an answerto the amended complaint, the CPA allegations should be deemed admitted underthe civil rules. Public Storage argued, “[T]here is no pending motion before the court.” Public Storage asserted Kischel filed the amended complaint on November 15 and it had 10 days to file an answerto the amended complaint, but instead filed a motion forsummaryjudgment dismissal. Public Storage argued the summaryjudgment motion explicitly denied the CPA allegation.

8No. 77975-3-1/9

The court ruled, “I agree with defense

. . , butthat is not an issue before me.” We decline to consider an argumentthatthe party did not properly raise below. Hikel v. City of Lynnwood, 197 Wn. App. 366, 378, 389 P.3d 677 (2016). We also note the record establishes Kischel did not complywith the notice requirements ofthe Civil Rules, resulting in no time for Public Storage to prepare forthe motion orsubmit case authority. See Goucherv. J.R. SimplotCo., 104 Wn.2d 662, 665, 709 P.2d 774 (1985). Kischel contends the court erred in concluding the Public Storage advertisements
are not unfairand deceptive in violation ofthe CPA. We review summaryjudgment de novo. Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summaryjudgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). To prevail on the CPA claim, Kischel must establish each ofthe following elements: “(1) [U]nfairordeceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injuryto plaintiff in his or her business or property; [and] (5) causation.” Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986); Guiiosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 917, 32 P.3d 250 (2001). The failure to establish any ofthe elements is fatal to a CPA claim. Hangman Ridge, 105 Wn.2d at 793. Kischel argues the failure of Public Storage to disclose instances of burglary or theft is an unfair ordeceptive practice underthe CPA. The CPA prohibits “[u]nfair methods ofcompetition and unfairordeceptive acts
or practices in the conduct ofanytrade or commerce.” RCW 19.86.020. A party can

9No. 77975-3-1/10

establish an unfairordeceptive act in one ofthree ways: (1) Perse unfair ordeceptive conduct, KIem v. Washington Mutual Bank, 176 Wn.2d 771, 785, 295 P.3d 1179 (2013); (2) an actthat has the capacityto deceive a substantial portion ofthe public, Hangman Ridge, 105 Wn.2d at 785-86; Behnke v. Ahrens, 172 Wn. App. 281, 290, 294 P.3d 729 (2012); or (3) an unfair ordeceptive act or practice not regulated by statute but in violation ofthe public interest, Klem, 176 Wn.2d at 787; Panag v. Farmers Insurance Co. ofWashington, 166 Wn.2d 27, 37 n.3, 204 P.3d 885 (2009). A plaintiffdoes not need to showthatthe act intended to deceive, “onlythat it had the capacityto deceive a substantial portion ofthe public.” Panag, 166 Wn.2d at47. “Deception exists ‘ifthere is
a representation, omission or practice that is likelyto mislead’ a reasonable consumer.” Panag, 166 Wn.2d at 50 (quoting Sw. Sunsites, Inc. v. Fed. Trade Comm’n, 785 F.2d 1431, 1435 (9th Cir. 1986)); Rush v. Blackburn, 190 Wn. App. 945, 963, 361 P.3d 217 (2015).The CPA does not define “deceptive,” but “the implicit understanding is that ‘the actor misrepresented something of material importance.’

“ State v. Kaiser, 161 Wn. App. 705, 719, 254 P.3d 850 (2011)11 (quoting Hinerv. Bridgestone/Firestone, Inc., 91 Wn. App. 722, 730, 959 P.2d 1158 (1998), rev’d in part on other grounds, 138 Wn.2d 248, 978 P.2d 505 (1999)). We measure a deceptive act or practice by “the ‘net impression’ “on a reasonable consumer. Panag, 166 Wn.2d at 50 (quoting Fed. Trade Comm’n v. Cyberspace.com LLC, 453 F.3d 1196, 1200 (9th Cir. 2006)). Where, as here, there is no factual dispute aboutthe content ofthe advertisements, whetherthe advertisements constitute “an unfair ordeceptive act” is a

11 Emphasis in original.
10No. 77975-3-1/1 1

question of lawwe decide de novo. Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997); Panag, 166 Wn.2d at47. Kischel asserts the advertisements misrepresentthe safety and security ofthe Public Storage facility byfailing to disclose thefts or burglaries that have occurred. Kischel claims the Public Storage advertisements led him to believe the storage facility
was absolutely secure from theft. Kischel cites the statements in the advertisements that Public Storage” ‘provide[s] the best storage solution’ “and is “‘respected and trusted.’

“ Neitherofthese statements is misleading ordeceptive. Kischel also cites statements in the advertisements that he claims could lead a consumerto believe Public Storage provides a secure storage facility protected from theft: -Daily Lock Check Completed by Property or Relief Manager -Individual Customer Gate Code Providing Secure Access to the Facility -CCTV System to MonitorAccess -On-Site Resident property Manager. But unlike in Eiflerv. Shurgard Capital Management Corp., 71 Wn. App. 684, 696-97, 861 P.2d 1071 (1993), the uncontroverted testimony ofJC Reed establishes thatthe statements in the Public Storage advertisements are accurate. We also note the Lease/Rental Agreement unequivocallystates: Ownerdoes not represent or guarantee the safety orsecurity ofthe Premises orthe Property orofany personal property stored therein, and this Lease/Rental Agreement does not create any contractual obligation for Ownerto increase or maintain such safety or security.[12] We conclude the Public Storage advertisements do not constitute an unfairor deceptive act or practice in violation ofthe CPA.

12 Boldface in original.
11No. 77975-3-1/12

Reciuestfor DeclaratoryJudgment Kischel contends the court erred in dismissing his declaratoryjudgment action. In the “First Cause ofAction—Declaratory Judgment,” Kischel asserts, “Ajusticiable controversyexists between Plaintiffand Defendant regarding Public Storage obligation to Plaintiffwith relation to assuring secure storage facility as represented and advertised to Plaintiff.” The “Second Cause ofAction—Declaratory Judgment,” states, “A justiciable controversy exists between Plaintiffand Defendant as to Plaintiff’s rights as a user of PUBLIC STORAGE facility and plaintiff’s reliance that such facilitywould allow plaintiff [a] secure and theft-free storage unit.” The “Third Cause ofAction—Declaratory Judgment,” states, “Ajusticiable controversy exists between Plaintiffand Defendant regarding Public Storage obligation to allow Plaintiff immediate access to his storage unit, replacing plaintiff’s lock and interference with plaintiff’s access to his unit.” The “Fourth Cause ofAction—Declaratory Judgment,” states: Ajusticiable controversy exists between Plaintiffand Defendant regarding Public Storage’s liabilityto Plaintiff based on defendant’s failure to disclose, properly inform and/or notify plaintiffthat [the] Public Storage facilitywas in fact un-secure to theft, so that Plaintiff could make [an] informed decision whetherto use such defendant’s un-secure storage facility. And the “Fifth Cause ofAction—Declaratory Judgment,” states: Ajusticiable controversy exists between Plaintiffand Defendantwith relation to validity ofthe Lease/Rental Agreement, Section 7. LIMITATION OF OWNER’S LIABILITY; INDEMNITY CLAUSE. Plaintiff requests this courtto make [a] determination ofvalidity ofsuch clause per RCW4.24.115.[13]

13 ROW4.24.115 addresses the “[v]alidity of agreementto indemnify against liability for negligence relative to construction, alteration, improvement, etc., ofstructure or improvement attached to real estate or relative to a motor carriertransportation contract.” 12No. 77975-3-1113

Kischel contends he was entitled to a declaratoryjudgment underthe Uniform DeclaratoryJudgmentsAct (UDJA), chapter7.24 ROW. We review a trial court’s decision on a requestfora declaratoryjudgmentforabuse ofdiscretion. Nollette v. Christianson, 115 Wn.2d 594, 600, 800 P.2d 359 (1990). A court abuses its discretion when it bases the decision on untenable grounds, for untenable reasons, orthe decision is manifestly unreasonable. Mayerv. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). Underthe UDJA, the court has the powerto “declare rights, status and other legal relations.” ROW 7.24.010. The UDJA provides, in pertinent part: A person

. . . whose rights, status orother legal relations are affected by a statute,

. . . may have determined any question ofconstruction orvalidity arising underthe

. . statute

. . . and obtain a declaration of rights, status orother legal relations thereunder. ROW7.24.020. The court did not abuse its discretion in concluding Kischel was not entitled to a declaratoryjudgment because there was nojusticiable controversy. In Diversified Industries Development Corp. v. Ripley, 82 Wn.2d 811, 814-15, 514 P.2d 137 (1973)14 theWashington Supreme Court held that in orderto obtain a declaratoryjudgment underthe UDJA, there must be ajusticiable controversy:

This court, in applying the [UDJA], has, in the absence ofthe intrusion of issues of broad overriding public import, steadfastly adhered to the virtually universal rule that, before thejurisdiction ofa court may be invoked underthe act, there must be ajusticiable controversy. The court defined a ‘justiciable controversy” as follows: (1)

. . . [Am actual, present and existing dispute, orthe mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative,

14 Footnote omitted.
13No. 77975-3-1/14

or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, ratherthan potential, theoretical, abstract oracademic, and (4) ajudicial determination ofwhich will be final and conclusive. Diversified Indus., 82 Wn.2d at 815. Inherent in these four requirements are the traditional limiting doctrines of standing, mootness, and ripeness, as well as the federal case-orcontroversy requirement. In sum, the fourjusticiabilityfactors must ‘coalesce” to ensure thatthe courtwill be rendering a finaljudgment on an actual dispute between opposing partieswith a genuine stake in the resolution. To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001)15 (quoting Diversified Indus., 82 Wn.2d at 815). Because the court dismissed the CPA claim as a matterof law, the court did not abuse its discretion in concluding there was nojusticiable controversy. The court also concluded the undisputed record shows Kischel terminated the Lease/Rental Agreement approximately 19 months before he filed the Complaintfor Declaratory Judgment. However, “to the extentthatthe Plaintiff believes thatthe Defendant has caused the Plaintiffto sustain monetary harm based on the chronology ofthe Lease/Rental Agreement, the Plaintiff’s proper remedy is to bring a claim fordamages.” Kischel cites CR 57 to argue the existence ofanotheradequate remedydoes not preclude a declaratoryjudgment. CR 57 states, “The existence ofanother adequate remedy does not preclude ajudgmentfor declaratory relief in cases where it is appropriate.” ~ Ronken v. Bd. of County Comm’rs of Snohomish County, 89 Wn.2d 304, 310, 572 P.2d 1(1977). But as noted, because the court dismissed the CPA claim and Kischel terminated the Lease/Rental Agreement, declaratory reliefwas not

15 Footnote omitted.
14No. 77975-3-1/15

appropriate. The court did not abuse its discretion in dismissing the requestfora declaratoryjudgment. We affirm summaryjudgment dismissal ofthe amended complaint.

WE CONCUR:



# ~Z~1h197~

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